A/HRC/38/35 as possible. 133 Transparency reporting should extend to government demands under company terms of service134 and must also account for public-private initiatives to restrict content, such as the European Union Code of Conduct on countering illegal hate speech online, governmental initiatives such as Internet referral units and bilateral understandings such as those reported between YouTube and Pakistan and Facebook and Israel. Companies should preserve records of requests made under these initiatives and communications between the company and the requester and explore arrangements to submit copies of such requests to a third-party repository. Rule-making and product development 53. Due diligence. Although several companies commit to human rights due diligence in assessing their response to State restrictions, it is unclear whether they implement similar safeguards to prevent or mitigate risks to freedom of expression posed by the development and enforcement of their own policies. 135 Companies should develop clear and specific criteria for identifying activities that trigger such assessments. In addition to revisions of content moderation policies and processes, assessments should be conducted on the curation of user feeds and other forms of content delivery, the introduction of new features or services and modifications to existing ones, the development of automation technologies and market-entry decisions such as arrangements to provide country-specific versions of the platform.136 Past reporting also specifies the issues these assessments should examine and the internal processes and training required to integrate assessments and their findings into relevant operations. Additionally, these assessments should be ongoing and adaptive to changes in circumstances or operating context. 137 Multi-stakeholder initiatives such as Global Network Initiative provide an avenue for companies to develop and refine assessments and other due diligence processes. 54. Public input and engagement. Participants in consultations consistently raised concerns that companies failed to engage adequately with users and civil society, particularly in the global South. Input from affected rights holders (or their representatives) and relevant local or subject matter experts, and internal decision-making processes that meaningfully incorporate the feedback received, are integral components of due diligence.138 Consultations — especially in broad forms such as calls for public comment — enable the companies to consider the human rights impact of their activities from diverse perspectives, while also encouraging them to pay close attention to how seemingly benign or ostensibly “community-friendly” rules may have significant, “hyper-local” impacts on communities. 139 For example, engagement with a geographically diverse range of indigenous groups may help companies develop better indicators for taking into account cultural and artistic context when assessing content featuring nudity. 55. Rule-making transparency. Companies too often appear to introduce products and rule modifications without conducting human rights due diligence or evaluating the impact in real cases. They should at least seek comment on their impact assessments from interested users and experts, in settings that guarantee the confidentiality of such assessments if necessary. They should also clearly communicate to the public the rules and processes that produced them. 133 134 135 136 137 138 139 See, for example, Twitter Transparency Report: Removal Requests (January−June 2017). Twitter has begun to publish data on “non-legal requests submitted by known government representatives about content that may violate the Twitter Rules” prohibiting abusive behaviour, promotion of terrorism and intellectual property infringement. Ibid. See also Microsoft, Content Removal Requests Report (January−June 2017). Ranking Digital Rights submission, p. 12; Guiding Principles, principle 17. See A/HRC/35/22, para. 53. Ibid., paras. 54−58. See Guiding Principles, principle 18 and A/HRC/35/22, para. 57. Chinmayi Arun, “Rebalancing regulation of speech: hyper-local content on global web-based platforms”, Berkman Klein Center for Internet and Society Medium Collection, Harvard University, 2018; Pretoria News, “Protest at Google, Facebook ‘bullying’ of bare-breasted maidens”, 14 December 2017. 17